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REMARKS 



OK 



THE HON. B. F. THOMAS, 



OF MASSACHUSETTS. 



THE RELATION OF THE "SECEDED STATES" (SO CALLED) TO 

THE UNION, AND THE CONFISCATION OF PROPERTY 

AND EMANCIPATION OF SLAVES IN 

SUCH STATES, 



IN THE HOUSE OF REPRESENTATIVES, APRIL 10, 186-2. 



BOSTON: 

PRINTED BY JOHN WILSON AND SOX. 
22, School Street. 

1862. 



REMARKS 



THE HON. B/ ¥f THOMAS, 




OF MASSACHUSETTS, 



no 



THE RELATION OF THE "SECEDED STATES" (SO CALLED) TO 
THE UNION, AND THE CONFISCATION OF PROPEirrV 
X^ AND EMANCIPATION OF SLAVES IN 

■^ ^^ ' SUCH STATES, 



IN THE HOUSE OF REPRESENTATIVES, APRIL 10, 18G2. 




r,()S1'()X: 

PRINTED BY JOHN WILSON AND SON, 
22, School Street. 

1SG2. 



A 



REMARKS. 



The Hou!?e being in the Committee of the Whole on the State of 
the Union, Mr. Thomas said, — 

Mr. Chairman, — I avail myself of the indulgence of 
the Committee to make some suggestions upon subjects 
now attracting the attention of Congress and of the 
country, — the relation of the " seceded States " (so 
called) to the Union, the confiscation of property, and 
the emancipation of slaves, in such States. Sensible 
how deeply the interests of the country are involved in 
their right decision, I can only say, I have given to 
them careful and patient consideration, with an earnest 
hope and desire to learn what my duty is, and faithfully 
and firmly to discharge it. 

The questions are novel as they are momentous. 
In the discussion of them, little aid can be derived from 
our own precedents, from the history of other nations, 
or from writers on constitutional and international law. 
The solution of the difficult problems of right and duty 
involved must be found in the careful study of the prin- 
ciples of the Constitution, and the just and logical ap- 
j)lication of them to this new condition of things. 



The peculiar feature of our civil polity is, that we 
live under written constitutions, defining and limiting the 
powers of Government, and securing the rights of the in- 
dividual subject. Our political theory is, that the peo- 
ple retain the sovereignty, and that the Government 
has such powers only as the people, by the organic law, 
have conferred upon it. Doubtless these inflexible 
rules sometimes operate as a restraint upon measures, 
which, for the time being, seem to be desirable. The 
compensation is, that our experience has shown, that, 
as a general rule and in the long-run, the restraint is 
necessary and wholesome. 

It is, I readily admit, by no narrow and rigid con- 
struction of the words of the Constitution that the 
powers and duties of Congress on these subjects are to 
be ascertained. Every provision must be fairly con- 
strued in view of the great objects the Constitution was 
ordained to effect, and with the full recognition of the 
powers resulting from clear implication as well as ex- 
press grant. Designed as the bond of perpetual union 
and as the framework of permanent government, we 
should be very slow to conclude that it lacked any of 
the necessary powers for self-defence and self-preserva- 
tion. 

15ut recognizing the profound wisdom and foresight 
of the Constitution, and its adaptation to all the exi- 
gencies of war and peace, when a measure is proposed 
in apparent conflict with its provisions, we may well 
pause to inquire, whether, after all, the measure is ne- 
cessary ; and whether we may not bend to the Constitu- 
tion, rather than that the Constitution should give way 
to us. When we make necessity our lawgiver, we are 
very ready to believe the necessity exists. 



Xor are we to forget that the Constitution is a bill of 
rights as well as a frame of government ; that among 
the most precious portions of the instrument are the 
first ten amendments ; that it is doubtful whether the 
])eople of the United States could have been induced to 
adopt the Constitution, except upon the assurance of 
the adoption of these a»mendments, which are our Magna 
Charta, embodying in the organic law the securities of 
life, liberty, and estate, which, to the Anglo-Saxon 
mind, are the seed and the fruit of free government. 
Some portions of our history have led to the conclusion, 
that the existence of these amendments may, in the 
confusion of the times, have been overlooked. 

In my humble judgment, JMr. Chairman, there has 
been, and is now, but one issue before the country ; and 
that is, whether the Constitution of the United States 
shall be the supreme law of the land. That Constitu- 
tion was formed by the people of the United States. It 
acts, not upon the States, nor, through the States, upon 
us as citizens of the several States, but directly upon us 
as citizens of the United States ; claiming, on the one 
hand, our allegiance, and giving to us, on the other, its 
protection. It is not a compact between the States, or 
the peoples of the several States : it is itself a frame 
of government ordained and established by the people of 
the United States. 

The sphere of the Government so established is indeed 
limited ; but within that sphere its power is supreme. 
It is a Government of delegated powers ; and the powers 
not delegated are reserved either to the States or to the 
people (Amendments, art. 10). 

The powers and functions granted to the National 
Government bv the Constitution arc embraced in three 



6 



general classes, — those concerning the relations of the 
United States to foreign nations ; those concerning the 
relations between the States and their citizens respec- 
tively ; and certain powers, which, though belonging to 
the home -department of Government, to be useful and 
effective, must be general and uniform in their opera- 
tion throughout the country. A very large proportion 
of the ordinary and necessary powers and functions of 
Government is left in the States. The powers of the 
National Government do not extend to or include the 
domestic institutions or internal police of the States. 
The separation and distinction between the respective 
spheres of the State and National Governments is an 
essential characteristic of our system, and is as old as 
the idea of Union itself. No Union was suggested, 
no project of one for a moment entertained, on any 
other basis. The Colonics, in authorizing their dele- 
gates to assent to a separation from Great Britain, and 
to form a Union for the general defence, expressly 
restricted them from consenting to any articles of union 
which should take from the Colonies the power over 
their internal police and domestic institutions. The 
resolutions of the Colonies of New Jersey, ]Maryland, 
and Rhode Island, may be cited in illustration. 

The resolution of the Provincial Congress of New 
Jersey — passed June 21, 1776, and laid before the 
Continental Congress on the 28th of June — empowered 
the delegates of that Province to — 

" I'nito witli the delegates of the other Colonies in declaring the 
I uited C'(jlonies independent of (ireat Britain; entering into a eou- 
federalioii for union and comnion defence; making treaties Avith foreign 
nations for commerce and assistance ; and to take sucli other mea- 
sures as may appear to them and you necessary for these great 



ends; promising to suppoil tlicni willi tlic whole lorco of this Tro- 
viiu'o ; iilura/s ohs('rri)>(/, whatever |)hiii oi" confederacy you enter 
into. fJte rer/alafing the intcvxal itolicr of I his J^roriuri' is to he vsirrrt/ 
III fhi- Colony Legidatnro.'''' 

The Convention of the Colony of Maryland, l)y a 
resolution (adopted June 28, 1776, and laid before Con- 
gress July 1), authorized and ein])owcrcd the deputies 
of the Colony to — 

•• Concur with the other United Colonies, or a majority of them, 
in declaring the United Colonies free and indejiendent, in favoring 
such further compact an<l confederation between them, in making 
foreign alliances, and in adopting such other measures as shall he 
judged necessaiy for securing the liberties of America : and that said 
Colony Avill hold itself boimd by the resolutions of the majority of the 
I'nited Colonies in the premises ; ■provided the aolc and (■xdimvc right 
of regulating the internal government and police of that Colony he re- 
nerved to the peo2:)le thereof." — Jnnrnrtls of Cont/ress, ITTH. pp. '.V.)i). 
891, 892. 

The credentials of the Assembly of llhode Island, 
after giving to the delegates power to enter into union 
and confederation, add, — 

•' Taking the greatest care to secure to this Colony, in tlie strongest 
and most perfect manner, its present established form, and all the 
powers of government, so far as relates to its internal jjolice, and con- 
duct of our affairs, civil and religions." — [hid., p. 848. 

In the Revolutionary Government, in the Articles of 
Confederation, in the Constitution, in its judicious inter- 
pretation, in every administnition under the Constitu- 
tion, and in every department of the Government, the 
limitation has thus far been carefully recognized and 
faithfully kept. This familiar, well-settled doctrine, as 
to the independent respective spheres of the National 
and State Government, has never, perhaps, been more 
clearlv and stronsflv stated than in one of the resolu- 



tions adopted by the Convention which ushered the 
present administration into power : — 

" Resolved^ That the maintenance inviolate of the rights of the 
States, and especially the right of each State to order and control its 
own domestic institutions according to its own judgment exclusively, 
is essential to that balance of powers on Avliich the perfection and 
endurance of our political fabi'ic depends." 

It is expressed also, with clearness and strength, in 
the resolution adopted by the House, near the close 
of the last session of Congress, by a nearly unanimous 
vote : — 

" Resolved, That neither the Federal Government, nor the people 
or governments of the nou-slaveholdiiig States, have a purpose or a 
constitutional right to legislate upon or interfere with slavery in any 
of the States of the Union." 

These doctrines, as to the supremacy of the National 
Government within its sphere and of the reserved 
rights of the States, are elementary. Between them 
there is no necessary conflict. Each is the complement 
of the other, — both vital parts of that political system 
under whose admirable distribution and adjustment of 
powers the people of the United States have had for 
seventy years incomparably the best and most beneficent 
Government the w^orld has ever known, — a Govern- 
ment now imperilled, not by reason of any inherent 
defect or any want of wisdom or foresight in its founders, 
not because we have outgrown its provisions, not be- 
cause it is behind the age ; but because it has fallen 
upon an age not worthy of it, which has failed to ap- 
preciate the spirit of wisdom, prudence, and moderation, 
m which it was founded. 

Such being the relation of the Government of the 
United States to its citizens and to the States, the first 



question that arises is, how far this relation is affected 
by the fact that several of the States have assumed, by 
ordinances of secession (so called), to separate them- 
selves from the Union. 

The people of the United States, in and by the Con- 
stitution of the United States, estabhshed a National 
Government, without limitation of time, " for themselves 
and their posterity." It had been provided under the 
Articles of Confederation, that the Union should be 
perpetual. The Constitution was established to form 
" a more perfect union" than that of the Confederation; 
more efficient in power, and not less durable in time. 
There is not a clause or word in the Constitution, which 
looks to separation. It has careful provisions for its 
amendment, none for its destruction ; capacity for ex- 
pansion, none for contraction ; a door for new States to 
come in, none for old or new ones to go out. An ordi- 
nance of secession has no legal meaning or force ; is 
wholly inoperative and void. The Constitution, and 
the laws and treaties made under it, the people have 
declared, " shall be the supreme law of the land ; and 
the judges in every State shall be bound thereby, any 
thing in the constitution or laws of any State to the 
contrary notwithstanding." The act of secession, there- 
fore, cannot change in the least degree the legal relation 
of the State to the Union. No provision of the Con- 
stitution of the United States, no law or treaty of tlie 
United States, can be abrogated or impaired thereby. 
No citizen of the United States, residing in the seceded 
States, is, by such ordinance of secession, deprived of 
the just protection of, or exempted from any of his 
duties to, the United States. In contemplation of law, 
the reciprocal duties of protection and allegiance remain 



10 



unaffected. After the act of secession, the province 
and duty of the Government of the United States are 
the same, according to the full measure of its ability, as 
before, — to enforce in every part of the Union, and 
over every inch of its territory, the Constitution and 
laws of the United States. 

It is the necessary result of these principles, that no 
State can abdicate or forfeit the rights of its citizens to 
the protection of the Constitution of the United States, 
or the privileges and blessings of the Union which that 
Constitution secures and makes perpetual. The pri- 
mary, paramount allegiance of every citizen of the 
United States is to the nation ; and the State authorities 
can no more impair that allegiance than a county court 
or a village constable. Every proposition, however art- 
fully disguised, which seeks to give any effect or vitality 
to an ordinance of secession, for evil or for good, is 
itself a confession of the right. To say that an act of 
secession is inoperative and void against the Constitution, 
and that this void act, sustained by force, is a practical 
abdication of the rights of the State under the Con- 
stitution, is to blow hot and blow cold, to deny and affirm, 
in the same breath ; to state a proposition which is felo 
de se. 

It is also the plain and necessary conclusion, from the 
principles before stated, that a State cannot commit 
treason. Under the Constitution of the United States, 
jiersons only can commit treason. How treason may be 
committed, and how tried and punished, the Constitu- 
tion points out (Constitution, art. 3, sect. 3 ; Amend- 
ments, arts. 5 and 6). The persons who for the time 
being hold the offices under a State Government may 
individually commit treason ; but the acts of the State 



11 



officers, traiisfcnding their uiitliority and in contiict with 
the Constitution of the I'nited States, involve in their 
guilt no man who has not himself levied war against the 
United States, or adhered to their enemies, giving them 
aid and comfort. It is only we, the subjects, tliat can 
commit treason, or expiate its guilt. No man, or set of 
men, can, without our consent, involve us in the awful 
crime, or subject us to the awful penalties, of treason. 

As a State cannot commit the crime of treason, it 
cannot incur a forfeiture of its powers and functions as 
the penalty of treason. The punishment provided for 
traitors is the result of judicial trial, conviction, and 
judgment. How to indict a State, the constitution of 
the court, the mode of trial, the form of judgment, and 
process of execution, yet exist in gremio legis. Nor is it 
material that the acts of the State officers have the 
sanction and support of the majority of the jieople of 
the State. Within the proper sphere of the State 
Government, the rule of the majority will prevail, except 
so far as it is restrained by the organic law^ ; but the 
majority of the voters of the State cannot deprive the 
minority of the rights secured to them by the Constitu- 
tion of the United States. Some of these rights may 
be kept in abeyance. Their exercise may be overborne 
by superior physical force. They may sleep ; but it is 
not the sleep of death. They are integral parts of the 
Constitution, and can only perish when the Constitution 
perishes. 

The State of Tennessee, for example, has passed an 
ordinance of " secession." She has allied herself with 
the other seceding States. Her vote of secession is 
sustained by force. Upon this new and startling theory 
of the Constitution, she has aheadv incurred a forfeit- 



12 



lire of all those functions and powers essential to the 
continued existence of the State as a body politic. The 
voice of her eloquent senator is heard in the Capitol ; 
her venerable judge sits in the highest judicial tribunal, 
and exercises the highest functions of Government ; her 
representatives mingle in our councils ; her loyal citi- 
zens greet with tears of joy the banner of our advan- 
cing hosts, — their hope and our hope, their pride and 
our pride. Yet, upon this theory, there is no Tennessee: 
" the Commonwealth itself is past and gone." Its 
citizens can no longer be represented in this House or 
the Senate. The courts of the United States are closed 
against them (Corporation of New Orleans vs. Win- 
ter, 1 Wheaton Rep., 91). The requisition upon the 
State for troops was a mistake. The direct tax was a 
mistake. Its citizens, under the shield of the Constitu- 
tion, are outlaws, and in their own homes exiles. If 
such be the effects of a void act of secession, we should 
be grateful we are not called upon to witness the results 
of a valid one. There is nothing in the doctrines of 
nullification or secession more disloyal to the Constitu- 
tion, more fatal to the Union, than this doctrine of 
State suicide. It is the gospel of anarchy, the philoso- 
phy of dissolution. Nor by carrying out this doctrine 
of the destruction or forfeiture of the State organization 
would any thing be gained for the cause of freedom. 
Slavery exists by the local, municipal law ; and would 
not be abolished, unless you go one step further, and 
hold, that, with the loss of the State organization, the 
institutions, laws, and civil relations of the States 
perish. Now, in case of conquest, even though the 
people of the conquered territory change their alle- 
giance, their relations to each other and their rights of 



li 



property remuiii undisturbed. The modern usage of na- 
tions, which has become hiw, would be violated if 
private property should be generally confiscated and 
])rivate rights annulled (United States vs. Percheman, 
7 Peters, 51 ; 3 Phillemore, p. 743). When, therefore, 
States were reduced to Territories, the National Govern- 
ment could not abolish slavery therein, except under 
the right of eminent domain and by giving just com- 
pensation. 

If we are right as to the nullity of the acts of seces- 
sion, we may proceed to inquire whether the fact, that 
the seceding States have attempted to form a new alli- 
ance or confederation, will effect the result. Upon 
the plainest letter of the Constitution, as Avell as by 
its entire spirit, these acts of confederation are void. 
Continuing as States in spite of their ordinances, they 
were expressly forbidden to enter into any treaty, 
alliance, or confederation, or into any agreement or 
compact, with another State or with a foreign power 
(Constitution, art. 1, sect. 10). Neither by secession 
nor confederation have they changed their legal relation 
to the Union and the Constitution of the United States. 
They are still members of the Union, foregoing for a 
time its privileges, but subject to its duties, bound to it 
by a cord which the sword of successful revolution can 
alone sever. 

What, then, it may be asked, is the legal character of 
this great insurrection ? The answer is. It is a rebellion 
of citizens of the United States against the Government 
of the United States ; an organized effort to subvert and 
overthrow its authority, and to establish another Govern- 
ment in its stead. Nothing can be more explicit than 
the proclamation of April 15, 1861 : — 



u 



'• The laws of llie United States have been for some time past and 
now are opposed, and the execaition tliereof obstructed, in the States 
of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, 
and Texas, by combinations too powerful to be suppressed by tlie 
ordinary course of judicial proceedings, or by the powers vested in 
the marshals by law. 

'' Now, therefore, I, Abraham Lincoln, President of the United 
States, in virtue of the power in me vested by the Constitution and 
the laAvs, have thought fit to call forth, and hereby do call forth, the 
militia of the several States of the Union, to the aggregate number of 
seventy-five thousand, in order to suppress said combinations, and to 
cause the laius to he duhj execided. 

" I appeal to all loyal citizens to favor, facilitate, and aid this 
effort to maintain the honor, the integrity, and the existence of our 
National Union and the perpetuity of popular Government, and to 
redress wTongs already long enough endured." 

The State organizations have been found convenient, 
and have been used for the purposes of the Rebellion. 
Those of counties and cities have been used for the 
same ends. In either case, it was an entire perversion 
of their functions ; and the action is none the less illegal 
and revolutionary on that account. A State, as such, 
having no power to engage in war with any other State 
or with the United States, cannot interpose its shield 
between the Government of the United States and its 
subjects committing treason by levying war against it ; 
nor is such levying war any the less treason because the 
traitors held places of trust in the State Governments, 
and perverted the functions of those Governments to 
their base ends. Morally, it is an aggravation of the 
offence. It does not change its essential legal cha- 
racter. 

In the Convention for forming the Constitution of the 
United States, Luther Martin, of Maryland, was anxious 
to insert a provision to save the citizens of the States 



1.') 



from being punishable as traitors to the United States 
when acting- expressly in obedience to the authority 
of their own States. The provision offered by him 
was, — 

'"That IK) act or acts (Idiic liy one or more of tlic States against 
the United kState.s, or by any citizen ot" any one of tlie United States, 
nnder tlie authority of one or more of the said States, shall be deemed 
treason, or juniished as such ; but, in case of war being levied by one 
or mori' of tlie States against the I'nited Slates, the conduct of each 
party towards the other, and tlieir adherents respectively, shall be 
regulated by the laws of war and of nations." 

This proposition was rejected, Mr. Martin says, with 
much feeling, because the leading members of the Con- 
vention meant to leave the States at the mercy of the 
National Government. The more obvious reason is, 
that it was inconsistent with the whole theory of the 
Constitution, which, springing from the people of 
the United States, acted directly upon them as its sub- 
jects, and with a force which no law or ordinance of 
a State could impair. 

This, then, is not a conflict of States ; nor is it a war 
of countries or of geographical lines. It is a conflict 
between Government and its disobedient subjects. He 
only is the enemy of the United States who is commit- 
ting treason by levying war against the United States, 
or giving aid and comfort to those who do. The loyal, 
faithful subject of the United States, wherever on the 
soil of his country he may have his home, is not 
the enemy of his country. No subtilty of logic, no 
ingenuity of legal construction, no misapplication of the 
laws of international war to this contest, can change 
the nature of things ; can convert loyalty into treason, 
or devotion into hostility. If there be to-day in Ten- 



16 



nessee or Georgia, or South Carolina even, a loyal 
subject of the United States, " faithful among the faith- 
less found," the Government is not at war with him. 
I am aware, that, as to property taken on tlie high seas, 
some of the district courts of the United States have 
held otherwise ; but I venture to predict, that the 
court of last resort will affirm the doctrine, stated by 
Mr. Justice Nelson of that court, to be good sense and 
sound law : — 

'* On the breakino'-oiit of a war between two nations, the citizens 
or subjects of the respective belligerents are deemed by the law of 
nations to be the enemies of each other. The same is true, in a quali- 
fied sense, in the case of a civil war arising out of an insurrection or 
rebellion against the mother-government. But, in the latter case, the 
citizens or subjects residing within the insurrectionary district, not 
implicated in the rebellion, but adhering to their allegiance, are not 
enemies, nor to be regarded as such. This distinction was constantly 
observed by the English Government in the disturbances in Scotland, 
under the Pretender and his son, in the years 1715 and 1745. It 
modifies the law as it respects the condition of the citizens or subjects, 
residing within the limits of the revolted district, who remain loyal 
to the Government." 

The difference between a war and a rebellion is clear 
and vital. War is the hostile relation of one nation to 
another, involving all the subjects of both : rebellion 
is the relation which disloyal subjects hold to the na- 
tion, not involving or impairing the rights of loyal 
subjects. The law may fail to protect obedient subjects ; 
but it never condemns them. As between the Govern- 
ment, and its subjects in arms against it, the lecjal relation 
is not that of war, notwithstanding the war-power is used 
to subdue and reduce them to obedience. Though the 
llebcllion has assumed gigantic proportions, and the civil 
power is impotent to repress it, the array of numbers. 



17 



and extent of physical force, do not change its essential 
legal character. It is still treason, — the levying of war 
against the United States by those who owe to it alle- 
giance. For this exigency the Constitution has pro- 
vided. The war-power of the Government may be 
evoked " to execute the laws of the Union, and to 
suppress insurrection." In levying war against the 
United States, the rebels do not cease to be traitors, but 
are doing the thing in Avhich the Constitution declares 
treason to consist (art. 3, sect. 3). 

While using the powers and appliances of war for 
the purpose of subduing the Rebellion, we are by no 
means acting without the pale of the Constitution. 
We are using precisely the powers with which the Con- 
stitution has clothed us for this end. We are seeking 
domestic tranquillity by the sword the Constitution has 
placed in our hands. In the path of war, as of peace, 
the Constitution is our guide and our light, — the cloud 
by day, the pillar of fire by night. 

Wliile using the powers of war for executing the 
laws and subduing rebellion, we are, of course, bound 
and restrained by the laws of war. It is our duty and 
our privilege to respect the maxims of humanity and 
moderation by which the law of nations and of Chris- 
tian ciA-ilization has tempered the spirit of modern 
hostilities. During the war, we may recognize in the 
rebels the rights of belligerents ; may send them flags of 
truce ; may make with them capitulations, cartels for 
exchange of prisoners ; and extend to them the courte- 
sies which mitigate, to some extent, the iron rigor of 
war. These things were done in the earliest stages 
of our Revolution, not only before the separation of 
the Colonies was declared, but before the idea of inde- 

3 



18 



pendence had fairly taken possession of the public 
mind. But it was never supposed, that, by adopting the 
usages of civilized warfare, Great Britain Avas relaxing 
her hold upon the Colonies, or elevating them into inde- 
pendent powers. Nothing is, I think, plainer in prin- 
ciple, than that the recognition of these rights and the 
observance of these usages — flagrante hello — cannot 
affect the legal relation of the parties ; does not divest 
the sovereign of his power, or release the subject from 
his duties, when the strife of arms ceases. It is only 
when rebellion has ripened into successful revolution, 
that the permanent legal relations of the parties are 
changed. The recognition of the "belligerent rights" 
of the rebels by foreign powers, can, as between the 
sovereign and his subjects, have no other or further 
effect. Such recognition (if known to the law of na- 
tions) proceeds upon the ground, that the revolution is 
not accomplished, and that the connection is not dissolved. 
Had this been done, the recognition would have been 
of their separate national existence. 

In my humble judgment, Mr. Chairman, the " seceded 
States " (so called), and the people of those States, are 
to-day integral parts of the Union, over whom, when 
the conflict of arms ceases, the Constitution of the United 
States, and the laws made under it, will resume their 
peaceful sway. Traitors may perish ; some institutions 
may perish : the nation will remain ; and the States will 
remain, essential parts of the body politic. " The body 
is one, and hath many members ; and all the members 
of that body, being many, are one body." 

With this brief and imperfect development of the 
principles involved in this great controversy, I proceed 
to a more direct consideration of the subjects of confis- 
cation and emancipation. 



U) 



In seeking to know what this Government ought to 
do in relation to the confiscation of private property, or 
the emancipation of slaves, in the " seceding " States, the 
obvious question presenting itself to every mind at 
the threshold is, AN'hat is the end which the Government 
and the people are seeking to attain "? There can be 
but one loyal answer to that question. It is to preserve 
the Union and the Constitution in their integrity ; to 
vindicate in every part of this indivisible Republic its 
supreme law. No purpose, however humane, benefi- 
cent, or attractive, can divert our steps from the plain, 
straight path of sworn duty. What is writ is writ. In 
seeking to change it by force of arms, we become the 
rebels we are striving to subdue. 

It is a plain proposition, that, in seeking to enforce 
the law, we are, as far as possible, to obey the law. 
We are not to destroy in seeking to preserve. The 
people do not require a bitter and remorseless struggle 
over the dead body of the Constitution. We may raise 
armies and navies, and pour out as water the treasure 
and life-blood of the people ; but we can neither think 
nor act wisely, live well, or die well, for the Republic, 
unless we keep clearly and always in view the end of 
all our labors and sacrifices, — the Union of our fathers, 
and the Constitution, wdiich is its only bond. No 
thoughtful man can believe there is a possibility of 
reconstructing the Union on any other basis ; or that it 
is within the province of Congress, in any other but the 
peaceful way of amendment, to make the effort. 

The bills and joint resolutions before the House, pro- 
pose, with some differences of policy and method, two 
measures, — the confiscation of the j)roperty of the 
rebels, and the emancipation of their slaves. Some of 



20 



the resolutions propose the abolition of slavery itself, 
with compensation for loyal masters. It is my duty to 
examine, as briefly as I may, the wisdom, the justice, 
and the constitutionality of the measures proposed. And, 
first, of confiscation. 

The propositions for confiscation include the entire 
property of the rebels, real and personal, for life and in 
fee. Within the class whose estates are to be confis- 
cated are included not only those personally engaged in 
the Rebellion, in arms against the Government, but 
also those who adhere to them, giving them aid or com- 
fort : so that within the sweep of the bills would be 
brought substantially the property of eleven States and 
six millions of people. 

The mind instinctively shrinks from a proposition 
like this. It relucts to include in one "fell swoop" a 
whole people. It asks anxiously, if no consideration is 
to be had for difi"erent degrees of guilt ; if the same 
measure is to be meted to those who organized the 
Kebellion and those who have been forced into it ; if no 
consideration is to be given to the fact, that allegiance 
and protection are reciprocal duties ; and that, for the 
last ten months, the National Government has found 
itself incapable of giving protection to its loyal subjects 
in the " seceding States," — neither defending them, nor 
giving them arms to defend themselves ; and that, de- 
prived of our protection and incapable of resistance, 
they have yielded only to superior force ; if a wise 
Government is to forget the nature of man and the 
infiuences of birth, of soil, of home, of society, and of 
State, by which his ox)inions are insensibly moulded ; and 
that this pestilent heresy of the right of secession, fatal 
as it is now seen to be, not only to the existence of good 



21 



government, but of social order itself, has been a cardi- 
nal article in the faith of a large portion of the people in 
the Southern States ; and that tliey liave been induced, 
by the arts and sophistries and falsehoods of unprin- 
cipled leaders, to beHeve that their future safety and 
well-being required the exercise of the right. Those 
leaders should atone for their crime by the just penalty 
of the law. But you cannot, says Burke, " indict a 
whole people : you cannot apply to them the ordinary 
rules of criminal jurisprudence." To state the proposi- 
tion to confiscate the j)roperty of eleven States is to con- 
fute it ; is to shock our common sense, and sense of 
justice ; is to forget not only the ties of history and 
of kindred, but those of a common humanity ; is to 
excite the indignation of the civilized world, and to in- 
voke the interposition of all Christian governments. 

It is said that just retaliation requires the confisca- 
tion of the property of the rebels. Doubtless nations 
may feel compelled to resort to measures of severe re- 
taliation ; it may be their only security against future 
outrage : but a firmly established government does not 
resort to cruelty and injustice because its rebellious 
subjects have done so. It must maintain a higher 
standard of rectitude and justice. Its object is, not 
vengeance, but to deter men from crime. It knows 
that harsh and severe punishments but rouse pity 
for the criminal, and indignation against the Govern- 
ment. 

Nor will the difference between confiscation by the 
rebels and by this Government be overlooked. Our 
acts of confiscation, if within the limits of the Constitu- 
tion, are effective and permanent : theirs, void in law, 
are temporary in their effect. The title to one square 



22 



inch of land will not be changed by any confiscation by 
the rebel authorities. Every man who has occupied 
the land of a loyal citizen under their pretended acts of 
confiscation will be liable for the full rent and damages 
to the estate. Every man who is in possession of 
personal property under them will be compelled to 
disgorge. Every debt paid under them into rebel trea- 
suries will still be due to the loyal creditor. The resto- 
ration and indemnity will, I know, be imperfect. Many 
grievous wrongs will go unredressed ; but every rebel, 
whatsoever functions he may have usurped, — judicial 
or executive, — who has invaded the rights of person or 
of property of a loyal citizen, will be liable to his last 
farthing for indemnity. So far, therefore, as our Go- 
vernment confiscates the property of rebels to its own 
use, it takes from the loyal citizen the sources to which 
he may justly look for redress. 

The acts of general confiscation proposed would de- 
feat the great end the Government has in view, — the 
restoration of order, union, and obedience to law. They 
would take from the rebels every motive for submission ; 
they would create the strongest possible motives to con- 
tinued resistance. In the maintenance of the Confede- 
rate Government, they might possibly find protection ; 
in the restoration of ours, spoliation. Spoliatis arma 
supersimt. You leave them the great weapon of de- 
spair. Sallust said of the old Romans, " Majores nostri 
religiosissimi mortales nihil victis eripiebant printer inju- 
riee licentiam," — " Our ancestors, the most religious of 
men, took from the vanquished nothing but the license 
of wrong-doing," — " words," says Grotius, " worthy of 
having been said by a Christian." 

It seems to be taken for granted, that our efforts to 



23 



suppress the llcbellioii will be successful iu proportion 
to the severity of the measures we adopt. The assump- 
tion is at war with the lessons of history and with the 
nature of man. The most vigorous prosecution of 
the war possible is best for the GoYcrnment and its sub- 
jects in arms against it. But the war is means to an 
end. " Wise men labor in the hope of rest, and make 
war for the sake of peace." It is only when justice is 
tempered with mercy that it is justice. 

Apart from the injustice and impolicy of these acts of 
sweeping confiscation, I have not been able to find in 
the Constitution the requisite authority to pass them. 
There are tw^o aspects in which the legal question may 
be viewed, — jirst^ the confiscation and forfeiture of pro- 
perty as the punishment for crime ; secondly, under what 
has popularly been called the " war-power" of the Go- 
vernment. 

Looking at confiscation as the penalty of crime, trea- 
son, or any lower grade of off"ence, some things seem to 
be plain : — 

That such forfeiture can be created by statutes appli- 
cable only to off"ences committed after their passage. 
Congress cannot pass an ex post facto law (Constitu- 
tion, art. 1, sect. 9). 

The subject charged with treason may justly claim all 
the muniments and safeguards of the Constitution. 

He cannot be deprived of life, liberty, or property, 
without due process of law (Amendments, art. 5) ; that 
is, judicial process, as understood from the days of 
Magna (yharta. 

He cannot be held to answer for a capital or other- 
wise infamous crime, except in cases arising in the land 
or naval forces, or in the militia when in actual service 



24 



in time of war or public clanger, unless on present- 
ment or indictment by a grand jury [ibid.). 

After indictment, he must have a trial by an impartial 
jury of the State and district wherein the crime shall 
have been committed; which district shall have been 
previously ascertained by law (art. 3, sect. 2 ; Amend- 
ments, art. 6). 

No attainder of treason can work a forfeiture, except 
during the life of the person attainted (Constitution, 
art. 3, sect. 2). By attainder is here clearly meant judi- 
cial attainder ; as a bill of attainder (that is, an act of 
the Legislature) is, by a prior provision of the Constitu- 
tion, expressly forbidden (art. 1, sect. 9). 

These sacred provisions of the Constitution, which as 
common-law muniments of life, liberty, and property, 
have existed in substance for six centuries, — " the least 
feeling their care, and the greatest not exempted from 
their power," — lie directly in the path, and are fatal 
obstructions to any legislation confiscating property as 
the penalty of treason, except as the result of the judi- 
cial trial and sentence of the offender. 

It has been assumed, — I think, without sufficient re- 
flection, — that, under our laws against treason, the most 
obnoxious traitors even will escape the righteous punish- 
ment of their crimes, because they must be tried by a 
jury in the State and district wherein the off'ence shall 
have been committed. Their only escape will be by 
exile. Where war is actually levied against the United 
States, where bodies of men have been actually assem- 
bled to efl"ect by force of arms their treasonable pur- 
poses, all those who perform any part, however minute 
or however remote from the scene of action, and who 
are actually leagued in the general conspiracy, are to be 



25 



considered as traitors (E.v jmrte Bolinaii, &c., -4 Crancli, 
75). We have not, indeed, adopted the law of con- 
structive presence, which holds that a man who incites 
or procures a treasonable act, is, by force of the incite- 
ment or procurement merely, legally present at the act. 
But it may be sufficient to constitute presence, if he is 
in a situation in which he can co-operate with any act of 
hostility, or furnish counsel and assistance to the parties 
if attacked (United States vs. Burr, 4 Cranch, 470). 
The modern facilities of communication greatly enlarge 
the field of co-operation. A commander at the end of a 
telegraph-wire, directing the assault upon a fort of the 
United States, or at a railroad station with troops ready 
to be moved to the assistance of the rebel army in 
action, is, in law, present at the overt acts of treason. 
The leaders of this Rebellion will be found, therefore, to 
have committed treason, and to be liable to indictment 
and trial in many States and districts in which a jury 
will be ready, upon adequate proof, to convict. 

In the proposed measures, the thing sought to be 
done is the confiscation of the property of the rebel 
as the penalty of his offence, and the attainment of this 
end without the trial and conviction of the off"ender. 
Though, under the Constitution, upon a trial and convic- 
tion of a traitor, you can only take the life estate, these 
measures assume, that, without any trial or conviction, 
you may take the fee-simple. Our legal instincts shrink 
from such a proposition. Its intrinsic difficulties have 
been seen and felt ; and a resort has been had to analo- 
gies and precedents, judicial and legislati\ e, to find for 
it some sanction and support ; I think, without success. 

1. It is true, as has been said, that, under the Consti- 
tution, men may be deprived of life and property without 

4 



26 



trial by jury. Cases arising in the land and naval forces, 
and in the militia when in actual service in time of war 
or public danger, are in terms excepted from the gene- 
ral rule (Amendments, art. 5) ; but the exception, in- 
stead of impairing, by the law of logic as of common 
sense, confirms the rule. 

2. Property is taken for taxes, and certainly witliout 
trial by jury, where the tax, and mode of assessment, are 
valid ; but this is under an express grant of power to 
Congress "to lay and collect taxes" (art. 1, sect. 8), the 
principle and general method of which were perfectly 
well understood when the Constitution was adopted. 
Nor does the exercise of this power, as has been sug- 
gested, take private property for public use without just 
compensation : on the contrary, the true and just tkeory 
of taxation is, that the price paid is the reasonable com- 
pensation for the protection and security of life, liberty, 
and property, which a wise and efficient government 
affords. 

3. The forfeiture of goods for breach of the revenue- 
laws has sHght, if any, analogy to the confiscation of 
property as a punishment for the crime of its owner. 
To Congress is given the power to " regulate com- 
merce," and " to levy and collect imports ; " and, of 
course, to prescribe the terms and conditions upon 
which goods may be imported. It may well avail itself 
of a familiar principle by which property used in violat- 
ing, defeating, or defrauding the law is liable to forfeit- 
ure. Though the forfeiture of the common law did 
not, strictly speaking, attach in rem, but was a part 
or consequence of the judgment of conviction of the 
offender, this doctrine was never applied to seizures and 
forfeitures created by statute in rem, and cognizable on 



27 

the revenue side of the exchequer. Tlie thiii<r was tlieu 
primarily considered as the offender, and the offence was 
attached to it. The same principle is applied to ])ro- 
ceedings in rem, and seizures in the admiralty (2 Wliea- 
ton, Tlie Palmyra). It is upon this distinction that the 
statutes of July 19 and of Aug. 6, 18G1, find their sup- 
port. The principle is, that the thing used in violating 
the law may be seized and condemned without a judg- 
ment upon the guilt of the owner. 

I proceed to inquire how far, if at all, the powers of 
Congress are enlarged by the existence of this Hebellion, 
and the use of the appliances of war to subdue it. 

It would seem to be plain, that the resistance of any 
portion of the people to the Constitution and laws can- 
not operate to confer upon Congress any new substan- 
tive power, or to abrogate any limitations of the powers 
of Congress which the people have imposed. When 
the Constitution intends that the existence of war or 
rebellion shall put an end to any restriction on the 
power of the Government, it says so: when it does 
not say so, the fair inference is that it does not mean so. 
Examples of such removals of restraint are found in 
article one, section eight, providing that the privilege of 
the " writ of habeas corpus shall not be sus[)ended, un- 
less when, in cases of rebellion or invasion, the ])ublic 
safety may require it ; " and in article three of the 
Amendments, forbidding, in time of peace, the quarter- 
ing of soldiers in any house without the consent of the 
owner, but in time of war permitting it to be done " in 
a manner to be prescribed by law." 

Engaged in suppressing a great and formidable rebel- 
lion, the Government may use the instrumentalities of 
war, so far as they are adapted to the end: but it is 



28 



never freed from the restraints of the Constitution ; can 
never rise above it. The Constitution is never silent in 
the midst of arms. In war, as in peace, it is the su- 
preme law ; itself solus populi et suprema lex. 

When Government is compelled to use the power of 
war, it observes its limitations. How far, in the use 
of this power, it may confiscate, or subject to forfeiture, 
private property, is the next question before us. 

Some things are tolerably well settled. That property 
used in promoting the rebellion, in levying war against 
the United States, is lawful prize of war. This would 
include the arms, munitions, and provisions of war, in 
actual use or procured for the purpose. The rule ex- 
tends to goods used, not strictly as munitions or imple- 
ments of war, but so as to defeat the military and naval 
operations resorted to to subdue the rebellion : as goods 
on their way to relieve besieged towns or forts ; or ships 
or cargo violating a blockade, or proceeding to or from 
ports with which commercial intercourse has been inter- 
dicted. It may extend to ships and cargo upon the high 
seas, the property of those levying war against the 
United States ; enemies, not because of their domicile or 
residence upon one part rather than another of the ter- 
ritory of the Union, but because they are in arms 
against it. 

Perhaps we should add to these, requisitions or con- 
tributions, within military districts, levied upon those at 
war with the Government, for the support of the invad- 
ing army. Such requisitions were, however, regarded 
by Wellington, a great statesman as well as great com- 
mander, as iniquitous ; as a system for which the 
British soldier was unfit. I would refer also to the ex- 
cellent remarks on this subject by President Woolsey, 



•J<) 



in his admirable Introdnrtion to •' Iiiteriiatioiial Law,"' 
p. 304. 

Beyond the points snggested, it is bcheved the usages 
of international war do not extend. By the modern 
usages of nations, private property on the land is ex- 
empt from confiscation. This exemption, Mr. Wheaton 
says (and there is no higher authority), is now lu^ld to 
extend " to cases of the absolute and un([ualiticd con- 
quest of the enemy's country" (Wheaton s "Elements 
of International Law," p. -121). We refer also, as 
tending to the same result, to Vattel, book 3, chap. 8, 
sect. l-iT ; to 1 Kent's " Commentaries," pp. 102, 104; 
3 Phillimore, p. 140 ; Woolsey, p. 304. To this miti- 
gated rule of war, there are doubtless exceptions. Of 
these, Mr. Wheaton says, — 

" The exceptions to these general mitigations of the extreme rights 
of war, considered as a contest of force, all grow out of the same 
original principle of natural law, Avliich authorizes us to use against 
an enemy such a degree of violence, and such only, as may be neces- 
sary to secure the object of hostilities. The same general rule Avhich 
determines how far it is lawful to destroy the persons of enemies, will 
serve as a guide in judging how far it is lawful to ravage or lay waste 
their country. If this be necessary in order to accomplish the just 
ends of Avar, it may be laAvfully done ; but not otherwise. Thus, if 
the progress of an enemy cannot be stopjied. nor our own frontier 
secured, or if the approaches to a town intended to l>e attacked can- 
not be made without laying Avaste the interniediale tei-ritory, the ex- 
treme case may justify a resort to measures not warranted by the 
ordinary purposes of Avar." — Tage 421. 

The exceptions growing out of military exigencies, 
and measured and governed by them, cannot be foreseen 
and provided for by legislation, but must be left, where 
the law of nations leaves them, with the military com- 
mander. 



30 

It has been said that these acts of general confisca- 
tion find support under the provision of the Constitution 
which authorizes Congress " to make rules concerning 
captures by land and water." The. Constitution does 
not define the meaning of the word " captures." It 
refers us in such cases to the law of nations, as in others 
to the common law. Congress has power to declare 
" war." What war is, the just causes of war, the rights 
and duties of nations in conducting it, are to be found 
in the law of nations. The " captures " referred to are 
very plainly not seizures of property under legal pro- 
cess, confiscation, or forfeiture, but the taking of enemy's 
property by force or strategy, ji^re victoria. The title is 
acquired by capture, and liable to be lost by recapture. 
To make rules concerning " captures " is not to make 
rules in conflict with or beyond the law of nations. The 
extent to which the power conferred by the law of na- 
tions shall be exercised, and the disposition to be had of 
captures when made, are the proper subjects of munici- 
pal law and of the provision of the Constitution. 

The case of Brown vs. the United States (8 Cranch, 
110) has been cited as expressly deciding that Congress 
has power to pass a confiscation bill. I submit, with 
great respect, that it decides no such thing. The only 
point decided in the case was, that British property 
found in the United States, on land, at the commence- 
ment of international hostilities (war of 1812), could not 
be condemned as enemy's property, without an act of 
Congress for that purpose. The court, dealing with a 
question arising under war with a foreign nation, had no 
occasion to consider the powers or duties of Congress in 
the case of rebellion. The discussions of the court 
recognize a distinction between the right of the sove- 



31 



reign to take the persons and confiscate the property of 
the enemy wherever fonnd, and tlie mitigations of the 
rnle Avhich the humane usages of modern times have 
introduced. With all mv reverence for the fjreat magis- 
trate who delivered the opinion of the court, I must be 
jDermitted to say, that usage is itself the principal source 
of the law of nations, and that these humane usages have 
become the rules of war in Christian States. The law 
of nations, says Bynkershoek, is only a presumption 
founded on usage [De foro Legatorum^ chap. 18, 
sect. 6). 

It is suggested, that, if the confiscation of private 
property violated the law of nations, the courts could 
not overrule the interpretation of that law by the politi- 
cal department of the Government, and that no other 
power could intervene. Possibly this may be so ; but 
surely it is not intended that we shall violate the law of 
nations in dealing with our subjects, because there is no 
appeal or redress for the subject. It is in the exercise 
of irresponsible power that the nicest sense of justice, 
and the greatest caution and forbearance, are demanded. 
In suppressing a rebellion so atrocious, marked by such 
fury and hate against a Government felt only in its bless- 
ings, forbearance seems to us weakness, and vengeance 
the noblest of virtues ; but, in our calmer moments, we 
hear the Divine Voice : " A engeance is mine ; I will 
repay." 

I conclude what I have to say upon this branch of the 
subject with the remark, that, in substance and effect, 
the bills before the House seek the permanent forfeiture 
and confiscation of property, real and personal, without 
the trial of the ofi"cndcr. I am unable to see how, un- 
der the Constitution, that result can be reached. 



32 



The temporary use of property in districts under mili- 
tary occupation, and of estates abandoned by their 
owners, rests upon distinct principles, which it is not 
now necessary to consider. We have only to remark, 
in passing, that the use of such property and the rule 
in such districts can be provisional only, Avaiting the 
regular action of the State governments, and in no way 
impairing their permanent powers. Upon this subject, 
I intend, at some future day, to trouble the House with 
a few suggestions. 

I proceed to the question of the deepest interest in- 
volved in this discussion, — the emancipation of slaves in 
the " seceding States." There is no subject on which 
our feelings are so likely to warp our judgment ; in 
which calmness is so necessary and so difficult, and 
declamation so easy or so useless. The general princi- 
ples stated in relation to the power and duty of Congress 
as to confiscation are applicable to the subject of eman- 
cipation. 

On the question of policy, the plausible and attractive 
argument is, that the only effectual way to suppress 
rebellion is to remove its cause. The position, when 
thoroughly probed, is, not that the National Government 
has not the power to put down the rebellion without 
resort to emancipation, but that the continued existence 
of slavery is incompatible with the future safety of the 
llepublic. This plainly is not a question of present 
military necessity, but one affecting the permanent 
structure of the Government, and involving material 
changes in the Constitution. This can be done in one 
of two ways : in the method the Constitution points out ; 
or by successful revolution on the part of the free 
States, and the entire subjugation of the slave States. 



;3:3 



No man can forc^sec to-day what policy a severe and 
protracted strnf><rle mni/ render necessary. It is suffi- 
cient to say, that into sncli a waj- of conquest and exter- 
mination the people of the United States have no presoif 
disposition to enter. They have too thoroni^li a convic- 
tion of the capacity of the Government to subdue tlic 
Kebellion by the means the Constitution sanctions, to be 
desirous of looking beyond its pale. 

I'pon the legal aspect of the question, it may be 
stated, as a general proposition, that Congress, in time 
of peace, has no power over slavery in the States. By 
that is meant the institution itself ; for the National 
Government may, in my judgment, forfeit the right of 
the master in the labor of the slave, as a penalty for 
crime of which the master shall be convicted : and, when 
so forfeited, it may dispose of the right as it sees fit. 
■ Nor is there any intrinsic difficulty in the use of this spe- 
cies of property under the right of eminent domain. If 
the Government were constructing a fort or digging an 
intrenchment, it might hire this species of labor, or, if 
necessary, take it, as it might other labor or property, 
giving reasonable compensation therefor. 

The provision as to the return of fugitives from ser- 
vice cannot be deemed an exception to the general rule 
before stated ; for the provision applies to escapes from 
one State into another, and not to escapes within the 
State. Of which we may remark, in passing, that, as to 
the former class, the power of the Government is strictly 
civil, to be executed by judicial process ; and that, as to 
the latter, the National Government, in time of war or 
peace, has no concern. 

Nor would an act of the National Government liberat- 
ing the slaves within a State, having tlu^ consent of the 



34 



State and providing compensation for the masters, mili- 
tate with the rule. Conventio vincet legem. The consent 
of the State would relieve the difficulty. 

But the question arises, how far the existence of the 
Rebellion confers upon Congress any new power over 
the relation of master and slave. Strictly speaking, no 
new power is conferred upon any department of the 
Government by war or rebellion ; but it may have 
powers to be used in those exigencies which are dormant 
in time of peace. Such, for example, are the power to 
call out the militia (art. 1, sect. 8), to try by martial law 
cases arising in the militia (Amendments, 5), to sus- 
pend the writ of habeas corpus (art. 1, sect. 9), to quarter 
troops in private houses (Amendments, 3) ; but, when 
the National Government is called to the stern duty of 
repressing insurrection or repelling invasion; may not 
new power over the relation of master and slave be 
brought into action? Such, I think, is the result. 

A plain case is presented by slaves employed in the 
military and naval service of the rebels. If captured, 
they may be set free. 

The Government may refuse to return a slave to a 
master who has been engaged in the Rebellion, or suf- 
fered the slave to be employed in it. 

It may require the services of all persons subject to 
its jurisdiction by residing upon its territory, when the 
exigency arises, to aid in executing the laws, in repress- 
ing insurrection, or repelling invasion. This right is, in 
my judgment, paramount to any claim of the master to 
his labor, under the local law. There might be a ques- 
tion of the duty of the slave to obey ; but the will of the 
master could not intervene. His claim, if any, would be 
a reasonable compensation for the labor of his slave. 



35 



But, though the power may exist, there is, with [)ru- 
dent and humane men, no desire to use it. Nothing 
but the direst extremity would excuse the use of a 
power fraught with so great perils to both races ; and 
the glorious triumphs of our arms, evincing our capa- 
city to subdue the Rebellion without departure from the 
usages of civilized warfare, have indefinitely postponed 
the question. 

There is one other exigency in which the relation of 
master and slave must give way to military necessity. 
If the commander of a military district shall find that 
the slaves within it, by the strength they give to their 
rebellious masters, — by bearing arms, or doing other 
military service, or acting as the servants of those who 
do, — obstruct his efforts to subdue the Rebellion, he 
may deprive the enemy of this force, and may remove 
the obstruction, by giving freedom to the slaves. This, 
it is apparent, is not a civil or legislative, but a strictly 
military right and power, springing from the exigency, 
and measured and limited by it, to be used for the sub- 
duing of the enemy, and for no ulterior purpose. If the 
commander-in-chief and the generals under him shall 
observe faithfully this distinction, the use of the power 
ought to be no just ground of complaint. If, in conse- 
quence of the protraction of the war, the effect of the 
use of this power should be to put an end to slavery in 
any of the States, or to weaken and impair its force, we 
may justly thank God for bringing good out of e^il. 

In my judgment, it would be impracticable for the 
Legislature, even if it had the power, to anticipate by 
any general statute the exigencies or prescribe the rules 
for the exercise of this power. The Legislature and tlie 
people will be content to leave the matter to the sound 



36 



discretion and sound patriotism of the magistrate se- 
lected to execute the laws. 

To avoid misconstruction, I desire to say that the 
power of Congress orer slavery in this District is abso- 
lute ; that no limitation exists in the letter or spirit of 
the Constitution or the acts of cession. All that is re- 
quisite for abolishing slavery here is just compensation 
to the master. Equally absolute, in my judgment, is the 
power of Congress over slavery in the Territories. 

Mr. Chairman, in a letter to a friend, published on the 
first day of the last year, I ventured to say that secession 
should be resisted to tlie last extremity, by force of arms ; 
that it cost us seven years of war to secure this Govern- 
ment, and that seven years, if need be, would be 
wisely spent in the struggle to maintain it ; that for 
this country there was no reasonable hope of peace but 
within the pale of the Constitution, and in obedience 
to its mandates. The progress of events has served 
only to deepen those convictions. They are as firmly 
rooted as my trust in God and his providence. Who- 
ever else may falter, I must stand by the Constitution I 
have sworn to support. I am not wise enough to build 
a better. I am not rash enough to experiment upon a 
nation's life. There is, to me, no hope of "one country" 
but in this system of many States and one nation, work- 
ing in their respective spheres as if the Divine Hand 
had moulded and set them in motion. To this system 
the integrity of the States is as essential as that of the 
central power. Their life is one life. A consolidated 
government for this vast country would be essentially a 
despotic government, democratic in name, but kept 
buoyant by corruption, and efficient by tlie sword. 



37 



Uesiring the extinction of slavery with my whole mind 
and heart, I watch the working of events Avith devout 
gratitude and with patience. The last year has done tlio 
work of a generation. 13y no rash act of ours, much 
less any radical change in the Constitution, shall we 
hasten the desired result. If, in the pursuit of objects 
however humane ; if, beguiled by the flatteries of hope 
or of shallow self-conceit ; if, impelled by our hatred 
of treason, and desire of vengeance or retribution ; if, 
seduced by the "• insidious wiles of foreign influence," — 
we yield to such change, we shall destroy the best hope 
of freeman and slave, and the best hope of humanity 
this side the grave. 



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